This might seem to go against the "fruit of the poisonous tree" doctrine. Because it does. It would have been so easy for the Court to say the stop wasn't based on reasonable suspicion -- even my intro students understand the "fruit of the poisoned tree" doctrine -- and just leave it at that. This decision muddies a simple rule for cops: don't stop people without reasonable suspicion.
Before the decision, and after Scalia's death, some on the Left gleefully predicted :
The era of conservatives merrily hacking away at Fourth Amendment safeguards appears to be over. And Sotomayor’s aggressiveness on Monday suggests that, in the long run, she believes her side has the winning hand.Nope. Not yet. Sotomayor was on the losing side of 5-3 decision. Scalia would have made the vote 6-3.
The facts are this:
Based on an anonymous complaint, Officer Fackrell was surveilling a suspected drug house on-and-off for a few hours over a week. He sees different people going in and out quickly, signs of repeated drug transactions. Something is fishy, but he's seen worse. He stops one guy who leaves the house a block away to "find out what was going on [in] the house” and "what [Strieff] was doing there.” This could have been good legit police work. Except Fackrell did not articulate "reasonable suspicion," the required (albeit somewhat vague) legal standard needed for stop. Nor did Fackrell ask Streiff. He "stopped" Strieff; Streiff was not free to leave. And for that you need "reasonable suspicion."
Reasonable suspicion (Terry v. Ohio) is not a high standard -- just more than a hunch -- but for whatever reason the court assumed (without deciding, because the state conceded the point) that there was no reasonable suspicion.
The court found the illegality of the stop borderline. A "mistake" but not any "flagrantly unlawful police misconduct." Reasonable people can disagree, and I think the Court is wrong here. But I'm thrilled any time the Court acknowledges the gray in policing.
Maybe there was reasonable suspicion. I strongly suspect I could have articulated reasonable suspicion for this stop. What do I mean? Reasonable suspicion isn't something that just is or isn't. It's a concept police have to articulate in writing. And some cops write better than others.
Maybe Strieff looked like a tweeker. (Because he was.) Describe why. What did he do that was suspicious. Frackrell didn't note when Strieff went into the house. So maybe Streiff spend the night as an airbnb guest or something. I doubt it. And Frackrell doubted it. And Officer Frackrell was right, of course. But being right doesn't make it legal. You have to articulate this and more to build reasonable suspicion. Or maybe there was another legal reason to stop Strieff. Maybe jaywalking. You can make a pretextual pedestrian stop. Apparently Frackrell didn't. So even if it could have been a legal stop, turns out it wasn't.
The Court has been having second thoughts about the "fruit of the poisonous tree" doctrine -- evidence obtained illegal can't be used -- for a while now:
The significant costs of this rule have led us to deem it “applicable only...where its deterrence benefits outweigh its substantial social costs.”[I don't buy the "substantial social costs" argument. Guilty people get away with murder all the time. A few more junkies not pleading guilty to minor drug charges? I can live with that.]
Here are the legal issues:
There are four exceptions to the fruit of the poisonous tree doctrine: independent source, inevitable discovery, good faith for search warrants, and the attenuation doctrine. Of course the latter one, the hardest to understand, is the one that matters here.
The attenuation doctrine. Honestly, I don't have an opinion on the attenuation doctrine. How could I? I didn't know it existed until a few hours ago.
Evidence is admissible when the connection between unconstitutional police conduct and the evidence is remote or has been interrupted by some intervening circumstance, so that “the interest protected by the constitutional guarantee that has been violated would not be served by suppression of the evidence obtained.”I'd paraphrase that, if I could.
The court accepts there was no attenuation in space or time (standards from the 1975 Brown v. Illinois). Point to Strieff. But -- and I think this is a bit of a stretch -- but pay attention because this is the key:
The outstanding arrest warrant for Strieff's arrest is a critical intervening circumstance that is wholly independent of the illegal stop.They combine that with the fact that "Officer's Frackrell's illegal stop [wasn't] flagrantly unlawful police misconduct."
This is not like if a cop had made an illegal search and then found drugs in that search. That would be no attenuation and thus unconstitutional. This was an almost legal stop, says the Court, and a warrant is a warrant and there's nothing wrong about search incident to arrest. It may be the wrong conclusion, but it's not crazy.
Justice Sotomayor is getting the headlines for her passionate dissent. In her over-reaching writing, she seems to be picking up where Scalia left off. But what I fear is that Sotomayor's passionate dissent -- you might say a bit off the deep-end -- will actually serve to expand the impact of the decision she doesn't like. Sotomayor's interpretation may become a self-fulling prophecy. If this case is remembered, it will probably be for her dissent:
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.That is certainly not what the decision says. That is certainly not what happened in the case in question. But Supreme Court cases are usually remembered in very brief summaries. The details of the case get lost to time. Terry v. Ohio? Reasonable suspicion, stops, & frisks for officers' safety. Lost over time are the circumstances so well articulated by Detective McFadden.
Sotomayor's issues go far beyond this stop and this reasonable suspicion to the very heart of proactive investigatory policing. Yes, people stopped by police get checked for outstanding warrants. Is that bad? Sotomayor thinks so. She continues:
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.Whoa.
What bothers me about Sotomayor's dissent is her implication that people with arrest warrants shouldn't be stopped and arrested by police because so many people are wanted on warrants. Warrants are issued to quickly for bullshit like unpaid fines. But take that up in a separate case. If a judge issues a warrant, the cop's job is to get that person to the judge. End of story. Probable cause of a crime has already been established by a judge. You're supposed to arrest people with warrants. That's why we call them arrest warrants!
The majority decision, written by Thomas, tries to keep thing narrow:
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.... This was not a suspicionless fishing expedition 'in the hope that something would turn up.'Sotomayor will have none of this:
The warrant check, in other words, was not an “intervening circumstance” separating the stop from the search for drugs. It was part and parcel of the officer’s illegal “expedition for evidence in the hope that something might turn up.”In this case Sotomayor is wrong. But in general, at least from my experience, she is right. Terry frisks may be needed to find weapons, but they're used much of the time to find drugs.
In Strieff, the Court says that drugs are admissible if found incident to arrest, after a warrant check, after a stop (that may have sort of been justified, but...) for which there was not reasonable suspicion. It might be the wrong decision, but it's not as far reaching as Sotomayor would have you believe. It least I hope not.
I don't think the exclusionary rule should be chipped away. But this wasn't a crazy stop. This wasn't a malicious stop. This wasn't an illegal arrest. This probably could have been a legal stop. But, as argued by the state, it wasn't. That is was the Court should have ruled on. I'd have signed off with the other dissent, written by Kagan and Ginsburg.
Nobody will remember Streiff as a stretch of the "attenuation doctrine." Hopefully, Sotomayor's dissent not withstanding, nobody will remember this case at all.
[For a more legally knowledgeable (but still very readable) interpretation, see Orin Kerr's post on Scotusblog.]