Supreme Court Knocks A Little More Off The 4th Amendment; Gives Cops Another Way To Salvage Illegal Searches

from the endlessly-forgiving dept

The Supreme Court hasn’t necessarily been kind to the Fourth Amendment in recent years. While it did deliver the Riley decision, which instituted a warrant requirement for searches of cellphones, it has generally continued to expand the ability of police to stop and search anyone for almost any reason.

Its Heien decision said it was perfectly fine for police officers to remain ignorant of the laws they’re enforcing by allowing them to continue making bogus traffic stops predicated on nonexistent laws. The Rodriguez decision at least prohibits officers from artificially extending stops to bring out drug dogs or beg for consent to search a vehicle, but it doesn’t do anything to prevent the bogus stops in the first place.

With its just-released Strieff decision, the Supreme Court — in a 5-3 ruling — extends the reach of bogus stops/searches to pedestrians. To get to where we are now, you have to go back a decade:

The case, Utah v. Strieff, started in 2006, when the Salt Lake City police got an anonymous tip reporting drug activity at a house. An officer monitored the house for several days and became suspicious at the number of people he saw entering and leaving. When one of those people, Edward Strieff, left to walk to a nearby convenience store, the officer stopped him and asked for his identification.

A routine check revealed that Mr. Strieff had an outstanding “small traffic warrant.” The officer arrested him based on that earlier warrant, searched him and found a bag of methamphetamine and drug paraphernalia in his pockets.

The evidence obtained should have been suppressed because the officer had no reason to stop Strieff and demand his ID. The state of Utah has already conceded this was an illegal stop. But it has appealed it all the way to the nation’s top court because it wants the fruits of the illegal search to remain unsuppressed and, more importantly, the government wants the precedent. It got it. From the opinion [PDF]:

To enforce the Fourth Amendment’s prohibition against “unreasonable searches and seizures,” this Court has at times required courts to exclude evidence obtained by unconstitutional police conduct. But the Court has also held that, even when there is a Fourth Amendment violation, this exclusionary rule does not apply when the costs of exclusion outweigh its deterrent benefits. In some cases, for example, the link between the unconstitutional conduct and the discovery of the evidence is too attenuated to justify suppression. The question in this case is whether this attenuation doctrine applies when an officer makes an unconstitutional investigatory stop; learns during that stop that the suspect is subject to a valid arrest warrant; and proceeds to arrest the suspect and seize incriminating evidence during a search incident to that arrest. We hold that the evidence the officer seized as part of the search incident to arrest is admissible because the officer’s discovery of the arrest warrant attenuated the connection between the unlawful stop and the evidence seized incident to arrest.

Working backwards from the arrest and search incident to the arrest, the court finds that the warrant the officer knew nothing about before stopping Strieff is all the connective tissue lower courts will need to refuse suppression of evidence obtained from similar illegal stops. The majority says this reverse engineering is perfectly fine because it probably won’t be abused — and even if it is, those whose rights are violated can always lawyer up and file a civil suit.

Strieff’s counterarguments are unpersuasive. First, neither Officer Fackrell’s purpose nor the flagrancy of the violation rises to a level of misconduct warranting suppression. Officer Fackrell’s purpose was not to conduct a suspicionless fishing expedition but was to gather information about activity inside a house whose occupants were legitimately suspected of dealing drugs. Strieff conflates the standard for an illegal stop with the standard for flagrancy, which requires more than the mere absence of proper cause. Second, it is unlikely that the prevalence of outstanding warrants will lead to dragnet searches by police. Such misconduct would expose police to civil liability and, in any event, is already accounted for by Brown’s “purpose and flagrancy” factor.

The majority acts as though this sort of thing is an isolated incident — a unicorn in the pantheon of law enforcement. Justice Sotomayor’s angry dissent tears this argument apart, pointing out how the majority has just given law enforcement a permission slip for illegal searches while claiming this is a narrow reading of a one-off incident.

The Court today holds that the discovery of a warrant for an unpaid parking ticket will forgive a police officer’s violation of your Fourth Amendment rights. Do not be soothed by the opinion’s technical language: This case allows the police to stop you on the street, demand your identification, and check it for outstanding traffic warrants—even if you are doing nothing wrong. If the officer discovers a warrant for a fine you forgot to pay, courts will now excuse his illegal stop and will admit into evidence anything he happens to find by searching you after arresting you on the warrant.

The majority’s decision pretends outstanding warrants won’t encourage police fishing expeditions. But to mix a couple of metaphors, law enforcement agencies have access to massive honeypots.

These factors confirm that the 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. Utah lists over 180,000 misdemeanor warrants in its database, and at the time of the arrest, Salt Lake County had a “backlog of outstanding warrants” so large that it faced the “potential for civil liability.”

This opinion gives officers the option to demand ID from every pedestrian they encounter in order to run a warrant check. There no longer needs to be a reason for the stop. Officers can work backwards by performing the stop, running an ID and, finally, arresting a person and performing a search if the database returns a hit. If you want a police state, you’ve got one, as Sotomayor points out.

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 cataloged.

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.

The logic of the majority’s decision — now the law of the land — says even a warrant for an unpaid parking ticket is a free pass for officers to perform a search of your person. It sounds innocuous but it isn’t. You’ll be stopped and not allowed to leave. You may be pushed up against a wall or bent over the hood of a police car. Your personal belongings will be taken, laid out, and cataloged. You may also have your genitalia and bodily orifices probed and inspected. And, most likely, all of this will happen in public in full view of passersby. A search is an invasion, but the Supreme Court’s decision treats as a minor inconvenience — and one whose illegality can be excused after the fact.

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Comments on “Supreme Court Knocks A Little More Off The 4th Amendment; Gives Cops Another Way To Salvage Illegal Searches”

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DannyB (profile) says:

Would police checkpoints make us all safer?

Here is a grand and glorious idea. Set up police checkpoints such that you cannot go more than a few miles without needing to go through a police checkpoint.

That way, police have multiple opportunities to check ‘your papers please’. And have drug dogs do some sniffing. And look in your car trunk, etc.

Police wouldn’t need to know any laws.

Pedestrians could be stopped as easily as motorists. And vice versa.

Police would never abuse such authority and lack of accountability. It’s for your safety.

To make you even safer, the next step should be that police make random but frequent ‘safety visits’ to everyone’s private home. That way we can be sure everyone’s ID is checked. Nobody has a police record. Police could see if there is anything within the home that is obviously in plain sight which they do not happen to like.

Eileen Kuch (profile) says:

Re: Would police checkpoints make us all safer?

Would police checkpoints make us all safer? Truth is, Danny, the answer to your question is a definite NO. Just look at the checkpoints Israel set up to restrict Palestinian movement even between villages in the West Bank. Ordinary Palestinians definitely aren’t any safer; instead, the opposite happened .. they are far less safe. The 4th Amendment to the US Constitution keeps us safe; violations of it do not.

Whatever says:

I sort of have a problem with the amount of legal rope given not to police, but to people who are breaking the law.

For me, the “stop and identify” here wasn’t out of line. The police had a tip that the location was a drug den, so it was pretty reasonable to me that someone coming from there might (a) have drugs, or (b) provide the police with information relative to who is in the house, etc. With a significant number of people coming and going from the property, the tip seems to be right on the money.

That should be enough probably cause to do a “stop and ask”. The officer was clearly not stopping random people fishing for a warrant, he just wanted some additional info to perhaps build a better case for a search warrant for the house.

Now, seeing the courts don’t feel that being one of many people coming out of a suspected drug den is enough for police to even ask, let’s get to the meat of the issue:

Did the officer operate in the old good faith with decent intent? Answer is clearly yes, he was tryingto build a case against law breakers. In other words, doing his job.

In the end, it’s the guys problem that he had an outstanding warrant. It’s the guys problem that he was walking around with meth on his person. The warrant was valid, everything from that point on should be free of the proverbial poison tree.

Whatever says:

Re: Re: Re:

Ahh Mike, always a dick about things.

Look, my point is only this: There was no search until the warrant was found. Only asking the guy coming out of a reported drug den to identify himself doesn’t seem to be particularly abusive.

Remember, you have (a) the tip, and (b) the observations of the officer that a large number of people were coming and going from the location, which is ALMOST enough for a warrant for the location. The officer engaged in a stop and identify situation, and did not search the guy until the warrant was discovered.

So the question of “due process” is addressed. So the question of innocent until proven guilty is addressed as well. Had the guy not had an open warrant, he would have walked away unsearched. Oh snap, there goes your vapid little comeback!

Techdirt hates it when law enforcement do their job and catch criminals.

Whatever says:

Re: Re: Re: Re:

No, I respect them – but I also respect that police officers have a job to do, and they must meet some incredibly high standards. Those seem to (if you believe Mike) be on the level of a top civil rights lawyer, a SCOTUS judge, and a little bit of Kreskin. They must be perfectly versed not only in the law, but they must be able to read SCOTUS mind before they even render judgement.

Basically, he wants cops to be a combination of Deep Blue and Marty McFly. It’s pretty funny to read how he thinks police should work (don’t arrest anyone until they are convicted!)

Bergman (profile) says:

Re: Re:

By the standards of evidence the police were operating on, I could make up a “tip” that techdirt is a child pornography ring and that you are sharing illegal photographs.

Whether it’s true or not is irrelevant. The agency I give that tip to then has exactly the amount of evidence of wrongdoing that the police officers in this case had. And the fact that the site has ‘frequent’ visitors is all the proof the police need of wrongdoing under this new evidence standard.

Do you really want to have a group of armed police kicking your door in ‘for the children’? Remember, they won’t stop tearing your house apart until they find the evidence they KNOW is there — after all, there was a tip that said so!

That of course assumes you’re still alive, because police are kinda trigger-happy these days.

Gwiz (profile) says:

Re: Re:

That should be enough probably cause to do a “stop and ask”.


It’s probable cause. The correct legal term is probable cause.

“Probably cause” indicates that something may make another thing happen in the future. “Probable cause” is a legal standard that indicates there is enough reason for an arrest or to do a search.

The terms mean very different things and are not interchangeable.


Joe says:

Re: Re:

I would agree with you that the warrant is the suspect’s problem if there was reasonable suspicion for the stop. But the state of Utah conceded that the stop was illegal, and that’s the problem with this line of logic.
You’re arguing the validity of the stop, but this case is arguing the validity of information found as a result of a stop that has been conceded as illegal.
What’s the difference between an illegal stop like this one and one where they just randomly stop someone with no cause? Utah agreed that the facts didn’t provide reasonable suspicion, but the fruits of the poisonous tree were still deemed admissible in court, and that’s the problem. There may be a “good faith” argument to be made, but what officer is not going to be able to, after the fact, come up with some reason that he was acting in good faith? This ruling, in effect, gives police the right to “card” anyone, anywhere, for any reason. After all, an officer at a DUI checkpoint can argue that he’s operating in “good faith” and he gets to randomly card hundreds of people for no good reason. This ruling just extends that abuse of power to every cop in every situation.

Anonymous Coward says:

so how much longer do you give it before not just the 4th Amendment but the whole Constitution is shot down in flames and thrown out the window? i was of the opinion that the main aim of our justice system was to ensure that there were no breeches of the Constitution, everyone was innocent unless proven guilty and Justice prevailed. so how come the various courts, all the way up to the highest in the land is doing anything and everything possible to ensure that, little by little, the USA is turning into a Police State? and how come, every government brought or contested trial results in as maximum number of jail time possible, even if the crime is so minor as to be almost minuscule amongst the great scheme of things? nothing is more important to the DoJ than getting maximum sentences for everyone it can. that’s truly ridiculous in a lot of cases, especially when innocent people are forced to give a guilty plea when they are innocent, just because the DoJ threaten to ruin their lives and those of families, as it has already done on so many occasions!

John Fenderson (profile) says:

ID is now required?

A question for the relevant lawyers here… Sotomayor says

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.

Up to now, there has been no legal requirement to supply identification to the police on request (outside of certain limited circumstances). Does this ruling affect that?

Jardineor1 (profile) says:

Re: ID is now required?

In Texas, you must produce a drivers license if you are operating a motor vehicle, and you are detained in your vehicle by a LEO.

If you are walking on the street, there is no requirement to identify yourself unless you are being detained by a LEO.. It is sufficient to state your name if you are detained in this manner. Failure to do so is a misdemeanor, though I don’t know what level.

So it depends. It depends on the situation and it depends on what state you are in.

Anonymous Coward says:

Re: Re: Re: ID is now required?

In reading the brief, I do not see where the Justices say that producing identification is required. So, it seems, that withholding identification could be an option. Keep in mind that you may endear a ride to the precinct.

[I am not a lawyer nor am I offering ANY legal or other advice.]

Anonymous Coward says:

Re: Re: Re:2 ID is now required?

I’m sorry, I should have been clear that the brief does not say that identification needs to be produced for PEDESTRIANS, but it does elude to the fact that identification DOES need to be produced for an operator of a motor vehicle.

[I am not a lawyer nor am I offering ANY legal or other advice.]

Kaemaril (profile) says:

Re: Re: ID is now required?

Not quite. In Texas a pedestrian does not have to identify themselves if detained by the Police.

Texas Penal Code § 38.02. Failure to Identify

(a) A person commits an offense if he intentionally refuses to give his name, residence address, or date of birth to a peace officer who has lawfully arrested the person and requested the information.

(b) A person commits an offense if he intentionally gives a false or fictitious name, residence address, or date of birth to a peace officer who has:
(1) lawfully arrested the person;
(2) lawfully detained the person;  or
(3) requested the information from a person that the peace officer has good cause to believe is a witness to a criminal offense.

That hasn’t stopped some idiot Texas officers from arresting people for ‘refusal to identify’ when they’re just detained. That, generally, hasn’t gone well for them.

John Fenderson (profile) says:

Re: Re: ID is now required?

Yes, operating a motor vehicle is one of the limited circumstances I referred to.

As I remember it, the Supreme Court had ruled quite a while ago that the police cannot compel you to produce identification under ordinary circumstances — even if you are a criminal suspect. However, if they have either probable cause or reasonable suspicion (I forget which) that you engaged in a crime, they can detain you for however long it takes them to obtain an identification of you through some other means.

But I am also not a lawyer. I would love for one to comment!

Geno0wl (profile) says:

Sounds like he willingly gave it up

So he was stopped, asked for his id, WILLINGLY gave his ID(which he was not obligated to do), then once that ID was checked he was “arrested” and frisked for drugs.
I mean if that is the actual chain of events here then I don’t see the actual problem.
Maybe I just find the “how should he have known he was wanted for a traffic citation” thing unconvincing” but this is basically “proactive policing 101”. He got a tip, he checked it out, he made a stop.
Am I missing something there?

That One Guy (profile) says:

Re: Sounds like he willingly gave it up

Great, now please explain to me what the traffic violation had to do with searching him? Did they think he was smuggling cars in his pockets? Wanted to help him out by getting his wallet ready so he could pay his fine?

The warrant with regards to the traffic violation had absolutely nothing to do with searching him, it was just the excuse used to do so. Had he not been so forthcoming in presenting his ID I have no doubt they’d have found some other excuse, and the courts would have given them a pass then too because ‘good faith exception’ or some similar rot.

Anonymous Coward says:


What constitution?

But the Court has also held that, even when there is a Fourth Amendment violation, this exclusionary rule does not apply when the costs of exclusion outweigh its deterrent benefits.

This pretty much states. We can shit on the 4th any fucking time we want even while we admit it is being violated. Fuck you Citizens, Fuck you so very much!

That One Guy (profile) says:

"It's more of a guideline than a rule really..."

But the Court has also held that, even when there is a Fourth Amendment violation, this exclusionary rule does not apply when the costs of exclusion outweigh its deterrent benefits.

Translation: The ends justify the means. We’d rather uphold a violation of the Fourth, even when we admit that it’s a violation, than exclude evidence if that’s what it takes to stop the boogie- criminals. Because criminals and/or accused criminals have no rights of course, so it doesn’t count.

And add another tally on the ‘It’ll only rarely be applied, and only to criminals who don’t have rights anyway so it’s fine’ side, because screw that ‘protection against unreasonable search and seizures’ thing.

They need to save everyone some time and just flat out admit, ‘We don’t believe that the laws or restrictions should apply if it interferes with the ability to stop criminals or accused criminals. If a cop wants to stop you for any reason then they can absolutely do so, and it’s perfectly fine for them to violate the laws so long as they think they’re acting within the laws when they do it, and/or find a particularly juicy piece of evidence.’ It’s pretty clear that’s what they are thinking, might as well make it public.

Uriel-238 (profile) says:

Re: "It's more of a guideline than a rule really..."

The juicy evidence from an illegal search is still admissible ruling is the problem here, extra so since the standard for juicy is so low.

Essentially that just killed the Fourth-amendment protections from illegal search. Law enforcement can search anyone for no reason. The evidence is still good.

We might as well have checkpoints.

nasch (profile) says:

Re: "It's more of a guideline than a rule really..."

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. Unless it’s really important.

Uriel-238 (profile) says:

"legitimately suspected"

What is legitimate suspicion vs. illegitimate suspicion?

Hairs on the back of the neck? Goosebumps? Knows he’s carrying cash?

when there is a Fourth Amendment violation…the costs of exclusion outweigh its deterrent benefits

Does this mean that if the crime is severe enough, then we can ignore the illegality of the search that discovered it?

Because that’s going to become a problem really fast.

Especially considering that possession is enough.

Personanongrata says:

It's All Over But the Crying

Supreme court jesters adorned in their flowing black muumuus have so decreed — citizen you have now been reduced to serfdom. Do as you are told and master will not pull to hard on your chain.

Aren’t lifetime appointments to the bench wonderful?

Revolt slaves Revolt, cast off the repressive yoke of the criminal US government.

It can start on an individual level using non-violent disassociation/noncooperation with all levels of government wherever/whenever practicable.

JoeCool (profile) says:

In plain English

But the Court has also held that, even when there is a Fourth Amendment violation, this exclusionary rule does not apply when the costs of exclusion outweigh its deterrent benefits.

In other words, we broke the rules, but that’s okay because you’re CRIMINAL SCUM and deserve to be in jail. So watch out, we’re going to get you even if it means breaking the rules.

Of course these days, being “criminal scum” has never been easier. Maybe you anonymously insulted your corrupt Mayor on Twitter. Maybe you insulted a rich person’s hair. Maybe you advertised to rent your home while you’re away on summer vacation. Maybe you crossed the street outside a marked crosswalk. Guess what? You’re criminal scum and the rules no longer apply for you.

Anonymous Coward says:

It will come back to haunt them

Just wait until these members of the Supreme Court are in a location where they are unknown. They get pulled up (whether walking, riding or driving) and the jackass copper demands their identification. Let’s see how they handle it when the jackass treats them with the same respect as the jackass treats everyone else. Or the same to any members of their respective families.

I wonder how many of these el supremo’s have unpaid parking fines still on record?

The train for the land of the free and justice for all has long since departed.

Tin-Foil-Hat says:

We've been there a while

We had already crossed the police-state line prior to this ruling. At this point it’s a matter of degree. Scalia was surprisingly aware of the slippery slope and often ruled against egregious invasions of privacy. Even his input wouldn’t have mattered here. The old-timers on the bench are of another era where police were honest protectors of the public good and not what we’ve got today. I have no doubt rights will be restored to us one day. It probably won’t be in my lifetime. I rarely leave the house these days. Between the criminals and police I don’t feel very safe especially since this same court ruled the police have no obligation to assist you.

Uriel-238 (profile) says:

Re: We've been there a while

The old-timers on the bench are of another era where police appeared to be honest protectors of the public good.


It’s an illusion that’s getting shattered with the growing ubiquity of personal video cameras.

Those friends of mine old enough to remember the 20th century and who were unfortunate enough to grow up on the wrong side of the streets (and with the wrong shade of skin) are pretty consistent in their stories of how the oppressive police dystopia prevailed in their neighborhoods.

morganwick (profile) says:

Time to impeach a whole bunch of justices

Whether it’s this, shutting down campaign finance reform, or any number of other things, multiple Supreme Court justices have repeatedly shown their willingness to bend the Constitution to say whatever they want, in complete dereliction of their duty and notwithstanding the clear facts of the matter, threatening the separation of powers and the survival of the Republic.

Rekrul says:

But the Court has also held that, even when there is a Fourth Amendment violation, this exclusionary rule does not apply when the costs of exclusion outweigh its deterrent benefits.

So by this logic, the police could have just stormed into the house without a warrant or any reasonable suspicion and as long as drugs were being sold there, everything would be fine, since the benefits of closing it down would outweigh the constitutional violations. Right?

Uriel-238 (profile) says:

Re: As I am not a lawyer...

…I’m still looking for the legalese that explains this or says just kidding, guys, you still need to get a warrant in advance. Even if you find a basement full of child graves, if it’s an illegal search, it’s inadmissible. But too many people here are concurring with my first interpretation of does not apply when the costs of exclusion outweigh its deterrent benefits.

And the does not apply threshold seems to be (at most) a gram of meth and drug paraphernalia.

They’ve given every officer in the nation license to rob.

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