Utah v. Strieff is a significant win for the police. It goes a long way toward creating an exception to the exclusionary rule for searches of persons who have outstanding warrants (which turns out to be a lot of people). At the same time, it’s perhaps less of a win than the police might have enjoyed if Justice Antonin Scalia were still on the Court.
I. Wong Sun lives, at least as formal doctrine
I want to start with a big-picture doctrine point. This case is the Supreme Court’s first decision on the Fourth Amendment exclusionary rule in five years. As I explained in my argument preview, the exclusionary rule has been in tremendous flux before this case. A big question lurking in the case was whether the Court would adopt preexisting exclusionary rule doctrine or use this case to announce new limits on the suppression remedy.
It should be noted, then, that Justice Clarence Thomas’s majority opinion does not purport to break new doctrinal ground. The opinion applies the factors from 1975’s Brown v. Illinois and concludes that suppression is unwarranted. Some will complain about how the Court applied those factors – I will do that myself below – but it’s worth pausing to note that the majority opinion did not overturn or substantially revise Wong Sun v. United States. This case instead reconciles the pre-2000 case law on the “fruit of the poisonous tree” doctrine (such as Wong Sun and Brown) with post-2000 case law (such as Hudson v. Michigan and Davis v. United States). According to today’s opinion, all of the cases are ultimately about cost-benefit weighing.
As a matter of formal doctrine, then, Wong Sun lives. That’s notable in part because it might not have been the case had Scalia remained on the Court. Scalia was a committed opponent of the exclusionary rule. This case was argued nine days after Scalia’s death. It’s possible that a Court with Scalia would have ruled more broadly.
II. Applying the Brown factors
On to the opinion itself. Today’s opinion applies the three “factors” that the Court recognized as particularly relevant to attenuation in Brown. The Court presents the Brown three-factor test as if it were obviously the settled doctrine a court should apply. It’s worth noting that this is hardly so.
First of all, Brown itself does not say that the attenuation doctrine is a three-factor test. Brown suggests more of a “totality of the circumstances” analysis, with no exclusive list of considerations. As Brown stresses, there is no “talismanic test” for attenuation. Second, post-Brown attenuation cases have not focused on Brown or applied a three-factor test.
Given that, it’s a little odd that the Court proceeds through the three factors from Brown in an almost mathematical way. Two factors are strongly against suppression and only one is for it, the Court rules, so on balance the evidence isn’t suppressed.
I think that’s an unfortunate framing. The core question raised by attenuation is proximate cause. As Anthony Amsterdam once put it, attenuation marks “the point of diminishing returns of the deterrence principle.” You can miss the forest for the trees if you isolate the three “factors” that happened to have been listed in Brown without paying attention to the underlying causation question. But that was the approach the Court adopted.
All the Justices agreed on how to apply the first factor, which concerns the temporal proximity of the violation. The evidence was discovered just minutes after the illegal stop, so that weighs pretty clearly in favor of Edward Strieff. The Justices then divided on the remaining two factors, and I think the majority’s argument on these points was unpersuasive.
Consider the second factor, which looks to whether “intervening circumstances” made the discovery of evidence remote from the violation. The Court concludes that the officer’s discovery of the warrant was an “intervening circumstance” that was “entirely unconnected with the stop.” I’m unpersuaded. In the context of causation, I think of an “intervening circumstance” as an outside event that changes what is expected to happen. But here, the stop unfolded exactly as the officer expected it would. The existence of the warrant is only an intervening circumstance if you didn’t expect Strieff to have a warrant out for his arrest. But stops lead to requests for ID which lead to checks for warrants. As Justice Elena Kagan noted in her dissent, this played out just as you would expect.
I was also unpersuaded by the Court’s application of the third Brown factor, the purpose and flagrancy of the violation. Although the majority opinion nowhere notes it, the government has the burden of proof in establishing attenuation. (Note the holding of Brown: “We conclude that the State failed to sustain the burden of showing that the evidence in question was admissible under Wong Sun.”) And in recent decades, the Court has gone out of its way to make clear that an officer’s intent is completely irrelevant to whether the Fourth Amendment was violated. That means that there is usually nothing in the record relevant to the officer’s purpose. How can the government meet its burden when there is no evidence in the record?
The majority largely fills this in, concluding that the Fourth Amendment violation was “at most negligent” and was based on “good-faith mistakes.” The majority adds:
[T]here is no indication that this unlawful stop was part of any systemic or recurrent police misconduct. To the contrary, all the evidence suggests that the stop was an isolated instance of negligence that occurred in connection with a bona fide investigation of a suspected drug house.
But what’s the evidence either way? Looking at the record in Strieff, the government could only point to a single statement relating to the officer’s purpose. In the direct examination at the suppression hearing, the prosecutor asked the officer, “Why did you stop [Strieff]?” I gather this was a question about what cause the officer had to stop Strieff; the prosecutor was trying to establish reasonable suspicion to justify the stop. The officer responded with a general statement of his motive:
[Strieff] was coming out of the house that I had been watching and I decided that I’d like to ask somebody if I could find out what was going on the house.
The majority suggests that this establishes the officer’s good faith. I don’t see how. According to the officer, his goal in making the stop was to investigate the case. But in the context of the exclusionary rule, the difference between “good faith” and “bad faith” is measured with respect to violating the Fourth Amendment in investigating the case, not whether the officer was trying to investigate the case at all. The Court has made clear that an officer who intentionally or recklessly violates the Fourth Amendment is acting in bad faith. The Court has also held that an officer who is trying to follow the law but through circumstances happens to miss the Fourth Amendment standard is acting in good faith. In light of this, I don’t see how a generic statement that the officer was trying to investigate the case can meet the government’s burden of showing good faith.
III. Looking ahead
In a practical sense, today’s opinion is important. I think Justice Kagan is right in her dissent that the majority’s approach practically invites police officers to make illegal stops. If you’re a police officer and you want to search a suspect to help investigate a crime, you just need to stop the suspect and ask for ID to see if he has an outstanding warrant. If there’s no warrant out for his arrest, you can let him go and he’s extremely unlikely to sue. If there is a warrant, you can arrest him, search him incident to arrest, and question him later; the courts will allow that evidence because you were acting in good faith by trying to investigate the crime. The police academies won’t teach officers to violate the law, of course. At the margins, though, officers will be encouraged to treat almost anything as reasonable suspicion to justify a stop. If in doubt, make the stop.
An important question is whether trial courts will be open to developing a record on the purpose and flagrancy of violations and whether they focus more on the burden of proof. In theory, the burden of proving attenuation is on the government. But in practice, I think a defense attorney needs to build up a record to show purpose and flagrancy. If the courts presume that officers are acting in good faith, defense lawyers need to put in evidence at suppression hearings indicating that this may be wrong.
IV. Part IV of Sotomayor’s dissent
Finally, I suspect that this case will become most known for Part IV of Justice Sonia Sotomayor’s dissent. Citing sources ranging from Ta-Nehisi Coates to Michelle Alexander, Sotomayor gives voice to the anger and frustration of social movements such as Black Lives Matter. According to Sotomayor, the majority opinion “implies that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be cataloged.” The voices of those “who are routinely targeted by police . . . are the canaries in the coal mine whose deaths, civil and literal, warn us that no one can breathe in this atmosphere.” “Until their voices matter too,” she concludes, “our justice system will continue to be anything but.” That section will make her a hero in some circles and a subject of intense criticism in others. Notably, however, no other Justice joined this section of her opinion.