Search, Seize, Convict?

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Caleb Mason

Just over six weeks ago, the Supreme Court ruled, in Utah v. Strieff , that evidence seized during an arrest is admissible at trial if the arrestee had an outstanding warrant—even though the police officer did not know about the warrant when he detained the person, and the government admitted that the detention was illegal.  

You might not have heard about it, because Strieff is one of those important late-term Supreme Court criminal procedure decisions that get overshadowed by headline-grabbing constitutional law rulings—in this case, the Court’s decisions on affirmative action and immigration policy.

Those cases are big deals, for sure; but Strieff potentially impacts more people than either.

Strieff is about the suppression remedy—the mechanism by which the Fourth Amendment (which guarantees us the right to be free from unreasonable searches and seizures) gets enforced in court.  If the police violate your Fourth Amendment rights and then find evidence against you, that evidence will get suppressed and the government can’t use it at trial.

There are numerous wrinkles and exceptions, of course, worked out through decades of case law.  It takes years of practice to be able to confidently apply all the doctrines in court.  Strieff is about one of those exceptions: “attenuation,” which means some event or circumstance that separates an illegal search or seizure from a subsequent discovery of evidence.

Strieff says that the existence of an arrest warrant for a person attenuates an illegal seizure of that person.  That is, if you have a warrant for your arrest, the Fourth Amendment’s suppression remedy no longer applies to you, even if the police, not knowing about the warrant, stop you—not because of the warrant, but for an admittedly illegal reason.

Strieff’s facts are straightforward, but doctrinally tricky.  An officer, responding to an anonymous tip about drug use at a residence, saw a man—later identified as Edward Joseph Strieff, Jr.—leave the house and walk down the street.  The officer did not see any evidence of drug use or any other crime.  Under controlling Supreme Court case law, the anonymous tip is not a sufficient basis for him to seize or detain the man, even temporarily, such as ordering him to come over and talk.

But the officer wanted to talk to the man (according to his testimony at the suppression hearing) so he detained him and ordered him to produce identification.   He then called in the man’s name to dispatch.  After dispatch reported that Strieff had an outstanding warrant for an unpaid traffic ticket, the officer arrested Strieff, and performed a “search incident to arrest,” during which he found drugs.

Uncharted Territory

Now, no one questions the legitimacy of arresting Strieff on the traffic warrant and prosecuting him for the traffic violation.  This case isn’t about the traffic ticket—it’s about the drugs the officer found in Strieff’s pocket.  And here’s where the case entered uncharted territory.  The government admitted at trial and before the Supreme Court that the officer violated the Fourth Amendment when he detained Strieff.  So, given that the officer’s initial detention of Strieff was illegal, and given that that illegal detention led directly to the drug evidence, can the government use the drugs as evidence in court to prosecute Strieff for a drug crime?

There are two options:

  • Option 1: Suppress the contraband because it was found as the result of an illegal seizure. The guy can be charged with the traffic violation, but not with the new crime based on the evidence found in the search.
  • Option 2: Ignore the fact that the initial seizure was straight-up illegal under controlling Supreme Court case law, because the arrest on the warrant was valid.

If you’re surprised that this hadn’t been definitively resolved by now, keep in mind that it’s very rare for courts to find that an officer’s stated reasons for detaining a suspect for questioning were invalid—and rarer still for the government to admit (as it did in Strieff) that they were invalid.

Thus, we don’t get a lot of fact patterns with an undisputedly illegal stop followed by discovery of a warrant.  But most lawyers would have resolved this the way the Utah Supreme Court did, with Option 1 (the initial seizure was illegal, so the evidence should be suppressed).  The fact that he had a warrant does not mean that the initial detention was not illegal.

Tulsa, Okla. (May 4, 2011) Operation Triple Beam II is a two-week U.S. Marshals led campaign against Tulsa area gangs. Deputies from the U.S. Marshals, along with officers from the Tulsa Police Department and several other agencies, targeted gang members with outstanding warrants and stepped up the number of pedestrian checks and vehicle stops. These increased efforts resulted in 129 arrests, 24 guns taken off Tulsa streets, $19,759 seized and the seizure of $11,896 in illegal drugs. The Marshals Service has been helping local law enforcement conduct anti-gang operations throughout the country for the last two years to help reduce the number of violent crimes due to gang activity. Credit photo: Shane T. McCoy / US Marshals

Photo by Shane T. McCoy/US Marshals via Flickr

The new answer from the Strieff Court is a definitive Option 2: “Ignore the facts that actually led up to and motivated the arrest, because the guy had a warrant.  Allow the evidence in.”

Every time I do Fourth Amendment commentary or training, I need to address the usual eye-rolling objection that suppression only is an issue when the police find evidence, so all these cases are just about letting crooks off the hook.  That response is profoundly short-sighted.

The scope of the suppression remedy matters a lot even to the law-abiding.  The suppression remedy is the principal—many lawyers would say the only—deterrent against police violation of the Fourth Amendment.

That protects the law-abiding, non-contraband-carrying Joe and Jane Citizen, who doesn’t want to run a gauntlet of random “Hey, c’mere!” police stops every day. One of the main reasons we mostly don’t see that sort of thing in the U.S. is the suppression remedy.  Police departments and prosecutors limit their officers’ searching-and-seizing impulses and adhere to the Fourth Amendment so their seizures of evidence will be “clean”—that is, useable at trial.

Every decision that cuts back on the suppression remedy has the direct effect of incentivizing officers to engage in the conduct at issue: Conduct that violates the Constitution but produces evidence that now is admissible in court.

Is There a Warrant Out For You?

Here’s another reason you should care about Strieff.  The ruling applies to all the people out there walking around with active warrants, and there are a lot of such people.  You might even be one without knowing it.  Arrest warrants get issued all the time, by any of the thousands of courts in this country.  Non-payment of traffic tickets is a major reason.

In the investigation of the Ferguson, Missouri police department that followed the Michael Brown shooting two years ago, it was revealed that a majority of adult residents of Ferguson had active warrants for one thing or another.  (The Ferguson statistics, and other similarly shocking statistics from other cities, can be found in Section III-B of Justice Sotomayor’s dissenting opinion in Strieff.)  There are likely several million Americans with warrants.  Many (most?) of them are probably unaware of the warrants.

Now, of course, having a warrant out for your arrest means the police can arrest you at any time, day or night, and without regard to whether you are currently committing any offense or no offense.  So I can understand to some degree the intuitive appeal of the Strieff result.  If I have an arrest warrant out for me, I can be arrested.  The fact that I’m not currently doing anything wrong is not a defense to my being arrested on a warrant.

But here’s the thing: I think most readers imagine that if I’m going to be arrested on a warrant, the police would know about the warrant before stopping me, and arrest me because of the warrant.  Strieff turns the tables on this, and greenlights suspicionless seizures followed by warrant checks.

Under Strieff, if you are walking down the street, and a police officer detains you illegally, without any factual basis—a “Hey you, c’here!” stop—and then after detaining you illegally, does a warrant check and finds that you have a warrant, and then arrests you on the warrant and searches you, you will not be able to suppress any evidence the officer finds on you.

Even if (as happened in Strieff) the government admits that the initial stop was illegal.

In the parlance of Fourth Amendment litigation, the existence of the warrant “dissipated the taint” of the illegality of the illegal stop by “attenuating” (separating) the causal connection between the illegal stop and the arrest. This is a big expansion in attenuation doctrine.  For the last fifty years, “attenuation” has meant that the causal connection between the illegal police action and the discovery of the evidence was severed, because something else—something new and unexpected—happened in between.

In the original case that established the doctrine, Wong Sun v United States, 371 U.S. 471 (1963) the police illegally entered and searched an apartment.  The occupants were arrested and released on their own recognizance.  Then several days later, they voluntarily came back to the police station and made statements to agents.  The voluntary action and temporal delay, said the Court, broke the causal connection between the illegal search and the statements:

On the evidence that Wong Sun had been released on his own recognizance after a lawful arraignment, and had returned voluntarily several days later to make the statement, we hold that the connection between the arrest and the statement had become so attenuated as to dissipate the taint.

You can see the doctrinal distance we’ve travelled, to get to the point at which the Strieff facts can be deemed an instance of Wong Sun attenuation. In Strieff there was no lapse of time, no release of the defendant, and no voluntary conduct by the defendant.  The existence of the warrant is enough, even though it was discovered during the illegal detention itself.

Where, you might ask, could one posit a limit to “attenuation” after Strieff?  Creative prosecutors are going to start arguing that Strieff isn’t really just about warrants.  After all, you could generalize the holding as follows: “The discovery, during an illegal detention, of facts that support a lawful arrest, attenuates the connection between the illegal detention and the discovery of evidence following the lawful arrest.”  Thus generalized, you could imagine a host of other facts discoverable during an initial illegal detention that would support a lawful arrest.

But the main reason Strieff should worry you is a practical reason, the reason stressed by Justice Sotomayor in dissent.

Supreme Court Fourth Amendment decisions are in a very literal sense a roadmap for police conduct.  Sometimes they set limits (e.g., no more warrantless GPS trackers, no more K-9 “knock-and-sniffs”).  Sometimes they create incentives.

Streiff creates incentives.

Strieff creates an incentive to maximize involuntary contacts for warrant checks.  Officers need only echo the reason given by the officer in Strieff: “I wanted to talk to him.”  No need to worry about creating a factual basis for probable cause or reasonable suspicion.  Grab him, get an ID, run a check.  If the guy has a warrant, make your arrest and search him.  If he has contraband, now you have a brand-new collar in addition to the arrest on the warrant.  Making your numbers just got a lot easier.  Justice Sotomayor makes this argument forcefully in her dissent.

A ‘Nationwide Evite’

She argues that the Court’s decision sends out, in effect, a nationwide Evite for every manner of random, suspicionless stops: every kind of profiling, every kind of fishing, quota-filling, harassment, etc.  Suppression was the dike (however porous, however cracked) holding back a flood of suspicionless and pretextual police searches.  Now, Strieff says that you run no risk of losing evidence if the person you stopped—however blatantly unconstitutional the stop—happens to have an active warrant, even if you had no idea of this when you stopped him.

There is now, therefore, zero disincentive to simply stop someone because you feel like it, or on the thinnest, least supportable hunch, then run a warrant check—and then, if it comes back positive, arrest and search.

In communities like Ferguson, where most adults have warrants, that means everyone is fair game for searches.

This sort of high-volume contact policy, utilizing discretionary, warrantless detention of members of the public is among the most important issues in the constitutional-policing debate.  This includes pretextual traffic stops (immunized from Fourth Amendment challenges by the Supreme Court in Whren v United States); front-door “knock-and-talks;” “totality of the circumstances” stops near (within 100 miles, in fact) of the border; and the high-volume “stop, question and frisk” policies implemented by many departments, most notoriously in New York City.

One of the continual laments of Fourth Amendment commentators has been the steady lowering of the factual bar for “reasonable suspicion,” since that standard was announced in Terry v. Ohio.  But at least the Terry standard is a standard, and for even a pretextual traffic stop or an NYPD stop-and-frisk, you still need a factual showing sufficient to support a suspicion of illegal conduct (if only a traffic offense), or else you really might lose the evidence found in the bust to a Fourth Amendment suppression motion.

The public (I think) intuitively got that idea, as did the police.

Yes, the courts were far too generous in accepting boilerplate reasonable-suspicion verbiage from officers (see, e.g., Illinois v Wardlow), but with the use of police car and body cameras on the rise, and the proliferation of bystander cell-phone footage, there was always at least a possibility that you could mount a colorable factual challenge.  “Look, Your Honor, my guy actually did put on his blinker when he changed lanes.  The stop actually did lack a factual basis for reasonable suspicion, so the Constitution requires that you suppress the drugs.”

Does a Warrant ‘Cure’ Everything?

The problem with Strieff is that it pulls away even that slim theoretical reed.  Because in Strieff, the government admitted that the cop did not have reasonable suspicion, and was not making a Terry stop.  The stop was illegal, under every constitutional doctrine.  Everyone agreed on that.  “So what?” said the majority.  The guy had a warrant, so that cures everything.

Functionally, under Strieff, if I have a warrant out for my arrest, I have lost the protection of the Fourth Amendment.

One response is: “Well, that’s as it should be.”  Maybe, but I’m not persuaded.  Yes, the existence of a warrant means I am subject to arrest at any time.  But I have a hard time understanding how that fact can be taken to justify illegal (even random) detentions without consequences.  Most Americans probably would not agree that it’s ok for the police to forcibly seize you with no factual basis, in order to determine whether or not there’s a reason to arrest you.  (We like it the other way around.)  Prior to Strieff, the principal disincentive to police doing this sort of thing was that if they did so, and found contraband on the person, it would likely be suppressed.  After Strieff?  Why not do it?  There’s no consequence.

Wait, you say, if the police started doing that, people would sue!  Again, maybe, but I’m not so sure.  A guy like Strieff doesn’t have any damages he can sue for in a civil suit.  He wasn’t physically harmed or mistreated, and because he had a warrant, there was nothing illegal about his arrest.  Strieff’s only “damage” was that because the cop initially detained him illegally, and he had contraband on him, he’s now going to prison.

Longstanding law holds that conviction for a crime based on evidence found in an illegal search is not a compensable damage in a civil suit.

Why It Matters

Ultimately, the evaporation of the suppression disincentive matters if we think that police will engage in this sort of conduct, and that that’s a bad thing.  There may certainly be reasonable disagreement on this point.  The majority says outright that what the cop did is no big deal, nothing that needs deterring (slip op. at 8).  He was at most negligent, and the violation was not “flagrant.”

In the dissenters’ view, that’s absurd.  Police want to make arrests and get information and they will do that to the limits of their training.  In their training, they are taught what conduct will trigger suppression and what won’t.  The only way Strieff won’t increase unconstitutional stops is if we keep it secret from our police departments.  One example given by Justice Sotomayor, from a Justice Department report on the Newark, New Jersey police department: over a four-year period, officers made over 50,000 stops of pedestrians and did warrant checks in about 80% of those stops.

What evidence were the stops based on?  According to the Justice Department, none: “93% of the stops would have been considered unsupported by articulated reasonable suspicion.”

My view, for what it’s worth at this early stage, is that police departments are increasingly coming to realize that there may be good reasons from refraining from search-and-seizure tactics even when those tactics won’t lead to suppression of evidence.  The fact that courts will allow evidence found during a particular type of search does not necessarily mean that departments should send the officers out to do that search willy-nilly.

I’ve been thinking about these questions a lot lately because I am on the civilian oversight board for the police department in the city where I live, and we’re in the process of searching for a new chief.  My city has worked very hard to create a culture in its police department of engagement and cooperation, the deliberate opposite of the belligerent police culture on display in Ferguson two years ago, in which officers treat the city they serve as an occupied war zone, and its citizens as enemies and threats.

We need to firmly reject and root out that culture; it’s counterproductive and un-American.  Just as the fact that the Pentagon may put surplus tanks up for sale doesn’t mean your local police department should buy them, the fact that the Supreme Court eliminates the suppression remedy for a particular illegal search or seizure does not mean that your local police department should start encouraging the practice.

I think most departments know that a policy of suspicionless dragnets of “Hey, come here!” stops for warrant checks is counterproductive and un-American, and won’t immediately jump to push the limits of Strieff.  I certainly hope so.

Caleb Mason is a partner at Brown, White and Osborn in Los Angeles, a former federal prosecutor and a regular contributor to TCR. He welcomes readers’ comments.


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