Only six Justices spoke during this morning’s oral argument in Utah v. Strieff. The six voices suggested that the Justices are deeply divided on the scope of the exclusionary rule, perhaps dividing four to four in Justice Antonin Scalia’s absence.

As I explained in my preview, the question in this case is whether the exclusionary rule applies when a police officer makes a unlawful stop of a suspect, that stop leads to a warrant check, and the officer learns of a warrant and makes a search incident to the arrest.

At the argument, the case for suppression could be boiled down to one word: Ferguson. Edward Strieff’s brief included statistics on the surprisingly high rates in which members of some communities have warrants out for their arrest from minor traffic offenses. In Ferguson, Missouri, a Justice Department report found that over seventy-five percent of the population had outstanding warrants.

Justice Sonia Sotomayor and Justice Elena Kagan repeatedly pressed Utah solicitor general Tyler Green about the incentives that would be created if the exclusionary rule doesn’t apply to illegal stops. The police focus their efforts on high-crime neighborhoods, Kagan noted. If many or most people in those neighborhoods have a warrant out for their arrest, don’t the police have an incentive to make illegal stops because the evidence likely will come in anyway? If the point of the exclusionary rule is to deter Fourth Amendment violations, isn’t the exclusionary rule needed to make sure officers don’t make illegal stops just to check for warrants?

The state’s response was that the Court should focus only on whether the initial stop was “flagrant.” This led to extensive discussion of how to know whether a stop was flagrant. Is that just an objective question? Does it depend on an officer’s subjective state of mind? Justice Anthony Kennedy suggested that perhaps the test should be whether the officer subjectively made the stop in order to do a warrant check. John Bash, arguing for the United States, picked up Kennedy’s suggestion and proposed that the test should be whether the officer had a purpose – either determined subjectively or deduced from the objective circumstances – “to exploit this attenuation exception precisely in order to search incident to arrest.”

The irony is that the record in Fourth Amendment law cases usually contains nothing about the officer’s intent because the Court itself has repeatedly and forcefully deemed an officer’s subjective intent irrelevant. By making intent irrelevant, the Court has ensured that the question doesn’t come up in motions to suppress. No one knows intent because the Court has stressed that no one should know. But what if the Justices themselves want to know the answer? The Justices were left to speculate in this case about what the officer was thinking. Did the officer ask for ID and run a warrant check because he was concerned about his safety? Did he do that because the point of the stop was to do a warrant check with the aim of searching incident to arrest?

The Court also seemed unsure of whether or how to use the statistics on how common arrest warrants are in different communities. If more people have arrest warrants, the thinking runs, the greater is an officer’s incentive to make an illegal stop if the exclusionary rule doesn’t apply. But few statistics are available, and even published statistics can’t tell you the likelihood of a person having an arrest warrant in a particular case. For example, a statistic might tell you the percentage of people with outstanding warrants in a particular city. But what about the specific neighborhood where the stop is made? What about that city block? What about the people coming out of a particular building that is the subject of an anonymous tip?

It was hard to tell which side might prevail. Sotomayor and Kagan were clearly on the defense side, with Justice Ruth Bader Ginsburg probably there, too. Justice Samuel Alito and Chief Justice John Roberts seemed clearly on the government’s side, with Kennedy probably with them. Justice Clarence Thomas maintained his usual silence, and Justice Stephen Breyer also asked no questions. In the past, Thomas has generally been a vote against the exclusionary rule and Breyer has generally been a vote in its favor.

If those trends hold, we may end up with a four-to-four vote with no answer until a new Justice is appointed to fill the vacancy left by Scalia’s death.

Posted in Utah v. Strieff, Analysis, Featured, Merits Cases

Recommended Citation: Orin Kerr, Argument analysis: Court closely divided on the exclusionary rule, SCOTUSblog (Feb. 22, 2016, 4:39 PM), http://www.scotusblog.com/2016/02/argument-analysis-court-closely-divided-on-the-exclusionary-rule/