Formally speaking, Utah v. Strieff considers the scope of the Fourth Amendment’s exclusionary rule when an illegal stop leads to the discovery of public information that justifies an arrest. More specifically, here’s the doctrinal question presented: Does the exclusionary rule apply when an officer learns during an illegal Terry stop that that there is a warrant for the suspect’s arrest, he arrests the suspect on the warrant, and he finds incriminating evidence during the search incident to arrest?
As a practical matter, that’s a pretty important question. But this case is also about a big conceptual question: What is the future of the exclusionary rule? This is the Court’s first exclusionary rule case since Davis v. United States in 2011. Davis left the state of the law quite uncertain, giving this case the potential to be a major decision. The Court may stick to its traditional doctrine on the exclusionary rule, in which case Edward Strieff has a strong argument that he should prevail. On the other hand, the Court may use this case to further chip away at the exclusionary rule. If so, all bets are off.
I. The facts and arguments below
The police received an anonymous tip that a particular house was being used to sell narcotics. Over the course of the next week, Detective Doug Fackrell watched the house on and off from his unmarked car to see if he could spot any suspicious activity. He saw some modestly suspicious stuff — occasional short-term foot traffic in and out of the house — but nothing big. After watching the house for a total of about three hours over the week, Fackrell decided to stop the next person who exited the house to ask him some questions.
That happened to be Strieff. Fackrell stopped Strieff in a nearby parking lot, asked for his ID, and then had dispatch run a warrant check. Dispatch told Fackrell that there was a “small traffic warrant” out for Strieff. Fackrell arrested Strieff on the traffic warrant, searched him incident to the arrest, and found meth and drug paraphernalia in his pockets. Strieff was charged with drug-related offenses.
Strieff moved to suppress the evidence found in the search incident to arrest. He argued, and the state conceded, that the initial stop was illegal. Under Terry v. Ohio, Fackrell needed reasonable suspicion to stop Strieff. But all Fackrell had was a generic anonymous tip and some foot traffic in and out of the building, plus Strieff being the next person who left the building. Fackrell had no individualized suspicion about Strieff at all.
The state responded that the exclusionary rule shouldn’t apply anyway. The existence of the warrant was an intervening event, the state argued, that broke the chain of causation between the illegal stop and the discovery during the search incident arrest. In effect, Fackrell arrested Strieff on the legal warrant rather than based on the illegal stop. So according to the state, the exclusionary rule should not apply. The case worked its way up the Utah state court system as a dispute on how the “attenuation doctrine” of the exclusionary rule should apply.
II. The new ballgame at the Supreme Court
Now the case has reached the Supreme Court, where it’s a new ballgame. The Supreme Court has been chipping away at the exclusionary rule since Phil Collins was topping the pop charts. That chipping away creates a lot of uncertainty. Which version of the exclusionary rule will the Justices want to apply? Will the Justices apply the traditional legal doctrine that would apply to a case like this, the “fruit of the poisonous tree” doctrine from the Court’s 1963 decision in Wong Sun v. United States? Or will the Court use this case as an opportunity to further cut back the exclusionary rule, perhaps by running with the conceptual framework of recent cases like Davis?
I suspect the outcome of this case largely hinges on the answer. If the Court applies traditional doctrine, the “fruit of the poisonous tree” framework, then I think Strieff has a very good argument that he should prevail. The “fruit of the poisonous tree” doctrine is a proximate-cause inquiry. The idea is that when there is a complicated path from an illegal search or seizure to the discovery of evidence, the evidence should be subject to suppression when the illegal search or seizure was the proximate cause of the discovery of the evidence. In that case, the evidence is the “fruit of the poisonous tree” of the constitutional violation.
On the other hand, if there is only an attenuated connection between the constitutional violation and the discovery of the evidence, then the violation is not the proximate cause of the discovery and the evidence should come in despite the violation. It’s a pretty sensible doctrine, I think. Officers are most culpable and most easily deterred about the reasonably foreseeable consequences of their acts that are proximately caused by them.
If the Court applies this traditional doctrine, then Strieff has a good case. In my view, there’s a pretty direct connection between the stop in this case and the search incident to arrest. From an officer’s perspective, the different steps are pretty closely tied together. When officers make a stop, they routinely ask for ID. When they get ID, they usually run a warrant check. And when the warrant check comes back positive, usually (as here) on some very minor traffic-related matter, they know they can search the person incident to the arrest. For an officer, the stop-to-ID-to-warrant-check-to-search-incident-to-arrest path is a coherent sequence. It’s a good way to go from mere reasonable suspicion, which only authorizes a stop, to a full search of the suspect for evidence.
As long as the initial stop is lawful, there is nothing wrong with this procedure. But if we’re applying the Wong Sun fruits test, the connection between the violation and discovery of the evidence strikes me as pretty tight. When the initial stop is illegal, I think that taints the fruits of the search incident to arrest from the warrant check. The police would of course still know that there is a warrant out for the suspect’s arrest. They could bring the suspect in on the warrant; they wouldn’t have to set him free. But the physical fruits of the search incident to arrest should be suppressed.
III. Which version of the exclusionary rule will the Court apply?
All bets are off, on the other hand, if the Court leaves behind traditional doctrines and instead tries to build a new test from more recent exclusionary rule cases. For example, in the Court’s most recent exclusionary rule case, Davis, the Court said that the exclusionary rule is a “bitter pill” applied only “when necessary,” as a “last resort,” when “the deterrence benefits of suppression” will “outweigh its heavy costs.” Davis also repeated language from the Court’s 2009 decision in Herring v. United States, indicating that the application of the exclusionary rule will often hinge on an officer’s mens rea: “To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system,” which will generally mean that an officer’s conduct must involve “deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence” to trigger suppression.
It’s certainly possible to reconcile this language with traditional fruits doctrine. You can say that the cost/benefit approach of Davis is implicitly the driving force behind the fruit-of-the-poisonous-tree doctrine. Fruits of the reasonably foreseeable evidence-producing steps flowing from the illegal act are generally suppressed while products of the non-foreseeable steps are not. That implies a cost/benefit balance, with evidence directly related to the illegality suppressed (to deter violations) while evidence more removed is not (limiting the cost of exclusion). So you could interpret the Wong Sun line of cases as consistent with Herring and Davis.
On the other hand, if you take the statements from Herring and Davis as your starting point, you could use them to craft a new doctrine. And there’s enough uncertainty in those statements that it’s hard to predict what the doctrines might be.
Consider the cost/benefit standard from Davis. Yes, it’s tricky to apply, as it requires comparing deterrence apples to lost-evidence oranges. But there’s an even bigger ambiguity in the test: It doesn’t tell you over what set of hypothetical cases you should assess the costs and benefits. And if you have a free hand to craft the set of cases, you can often reach any result you like. If you want to rule for the defense, you articulate a set of hypothetical cases in which the benefit of deterrence is strong and the costs of suppression are small. If you want to rule for the government, you articulate a set of hypothetical set of cases where the benefit of deterrence is weak and the costs of suppression are high.
Think about this case. If you want a pro-defendant rule, you might describe the relevant cases as “suspicionless seizures followed by warrant checks that reveal warrants for minor traffic offenses.” So construed, the case for deterrence is quite high, as the exclusionary rule is needed to deter the illegal seizure. On the other hand, the costs of the rule are fairly low, as it will mean only fewer arrests for minor traffic offenses. If you want a pro-government rule, on the other hand, you might describe the relevant cases as “good faith stops by an officer of a recent visitor to the scene of an ongoing suspected serious felony offense.” For that set of cases, the need for deterrence is relatively low: After all, the officer was acting in good faith. On the other hand, the cost of suppression is significant, as the government loses all the evidence that the officer learns during the stops about the serious crimes being investigated.
You can probably also reach either result under the mens rea approach from Herring, too. There’s a lot of uncertainty in what makes conduct deliberate and what makes deliberate conduct sufficiently culpable. If you want to rule for the defense, you say that the facts and the law were very clear. The Terry standard is extremely well known to any officer. Detective Fackrell was not misled about any facts. He simply misapplied the law, intentionally and deliberately stopping Strieff even though he had no individualized suspicion about him. If you want to rule for the government, however, you say that Fackrell’s conduct was negligent but not grossly or systematically negligent. He erred here, true, but there is no indication that he was a sloppy or malicious officer more generally.
Which approach will the Court take? Will it treat this case as just a routine application of the taint test? Will it reconcile the traditional test of Wong Sun with the newer language from Herring and Davis? Or will the Court use this case to alter the taint test with something else? Oral argument is February 22, so maybe we’ll find out then. Stay tuned.