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by Peter Moskos

June 21, 2016

Utah v. Strieff: The not so poisonous tree

The branches of the poisonous tree got pruned a bit. The Supreme Court says that if a cop makes a kinda illegal stop -- "mistaken" is the word the Court uses -- and then arrests the person after a warrant check, and then finds drugs in a post-arrest search, the drugs are admissible in court.

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.

It means:
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.

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.]


Kyle said...

Fruit of the poisonous tree is having a mutation which is part of evolution. Thank you, science.

Andy D said...

I happen to think this decision was the wrong one, especially because the "fruit" found was so minor. Might the "attenuation doctrine" make sense if there was evidence of murder found, and the sole basis for exclusion was not that there WAS no RAS, but rather the detective fail to articulate it? Meh. Maybe.

I do wonder if you are right that "Scalia would have made the vote 6-3." I'm not so sure. Scalia, for all he is vilified, actually was pretty strongly pro-dfenedant-rights in a lot of ways. In this case I have no idea how he may have ruled, but it is far from a foregone conclusion that he would have agreed with the majority.


Adam said...

Professor Orin Kerr, writing for SCOTUSblog, has explained the finer points of the decision in this post. I found it very informative, even though I'm someone who prides himself on being quite knowledgeable about criminal procedure. A lot of so-called experts have published commentary on this decision, but most of them either aren't experts in the field (as Kerr is), or aren't legal experts of any sort, and it shows in their writing. After Kerr's article, this post is probably the best I've seen so far, and from a non-lawyer no less! Bravo.

I think that I, too, would have joined Kagan's dissent. I don't think this particular cop was banking on finding an open warrant that would allow him a free search, but this decision does create some perverse incentives for officers, as both Kagan and Kerr point out. I'm not a big fan of the exclusionary rule, and I do think it carries substantial social costs, but until we replace it with something better (more reliable internal discipline and civil remedies, for example), it's the only real mechanism we have for ensuring that cops abide by the Fourth Amendment. When suppression would really serve no deterrent function (as the court has found in other cases), I'm in favor of not applying the exclusionary rule. But suppression in these types of cases would probably serve the purpose it's intended to serve.

Moskos said...

Thanks for the Kerr link. It is good. I think I stumbled across his analysis on the oral arguments when I was trying (unsuccessfully) to find a version of the the original police report.

Moskos said...

Kerr: "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."

Also: "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."

Andy D said...

I stand corrected on your statement about Scalia. This case still makes little sense to me given the minor charges that resulted. If the evidence was that of murder or another serious crime, perhaps on balance it should not be excluded (it seems most other countries' courts use some sort of balancing test to decide on exclusion of evidence) but this case seems to be one in which, on balance, the evidence should be excluded. the officer seems to have articulated absolutely no reason for the stop other than he wanted to do it, which is unacceptable.

Moskos said...

Adam, Yes. Cops run warrant check by habit. And it's not a bad habit. I don't think that was his goal here. He was pretty clear his goal to gather intel on the drug house. A noble goal.

Like I wrote, I think he could have articulated reasonable suspicion, but he didn't. And given that he didn't, that's what the Court has to go on.

What are the big costs of the exclusionary rule? The Court mentions idealistically that "criminals go unpunished." Come on, now. That's hardly persuasive, at least as it relates to the few times the exclusionary rule kicks in from policing, as compared to, say, arbitrary case dropping by prosecutors. Are there cases where there has had an explicit social cost?

I'm also sympathetic to the exclusionary rule because (as this decision shows) the rules are so stacked in police officers' favor. The game is rigged. And if cops don't follow the rules they're either lazy or stupid. And I'm against both.

Adam said...

I think the cost is that criminals go free, and in turn, crime goes up. I'm no criminologist, but I think there's empirical evidence to support that theory. Here's one study. (I only read the abstract.) I think prosecutors drop cases because they think they're weak -- a conclusion they often reach after they decide certain evidence is likely to be excluded, or after it actually is excluded in a suppression hearing. At other times the cases go forward without the evidence, but the State loses at trial when it otherwise wouldn't have.

Attacks on the exclusionary rule come from all across the liberal/conservative spectrum. See here. (Another paper I didn't read in full, but it looks good). Andy is right that other countries use a balancing approach. We might be the only country in the world that has an absolute exclusionary rule. The remedy for Fourth Amendment violations should be determined by balancing the egregiousness of the violation against need for the evidence. It isn't, which means judges are faced with an all-or-nothing decision when they decide how to deal with illegal stops and searches, and the "all" option is often unacceptable to them, so they carve out exception after exception. It's the exclusionary rule itself that caused the system to be rigged. As Prof. Akhil Amar wrote (quoted in the linked article above): “Judges do not like excluding bloody knives, so they distort doctrine, claiming the Fourth Amendment was not really violated… At first they will say it with a wink; later, with a frown; and one day, they will come to believe it . . . even if exclusion creates short-term deterrence, it creates long term instability,”

Moskos said...

Interesting. I guess my honest question is: how often does the exclusionary rule come into play? I'm thinking not very often at all. And I'm also thinking it does have a large deterrent effect on keeping police in line.

Unknown said...

Sotomayor wrote: "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."

Moskos: "That is certainly not what the decision says."

The decision may not say it's legal for the police to do this, but it is the practical effect of the decision. In other words, what's to prevent an officer from doing exactly what Sotomayor stated? A civil lawsuit for a brief detention? Internal discipline? Neither one of those seem to be realistic deterrents to unconstitutional police misconduct.

Unknown said...

Moskos: "And if cops don't follow the rules they're either lazy or stupid."

I don't see the cop who arrested Streiff as either lazy or stupid. I'd think the more likely explanation is that they're zealous in doing their job of catching criminals and view criminal procedural protections as impediments, instead of important limitations on the power of the state.

Moskos said...

But it *could* have been a legal stop. That's my point. Why not make it a legal stop by articulated reasonable suspicion in the report? Or (as the court said) he could have "asked." But somehow the cop made it a stop and didn't or wasn't able to articulate reasonable suspicion. And that was an error.

Adam said...

Sure, Liberaltarian. I could forgive that level of imprecision if that summary were written by a journalist, but it was written by a Supreme Court justice. She could just as easily have said the case "encourages" police to do all those things, and that would have been fair. That's what Kagan wrote in her dissent. But ultimately I agree with you: if cops don't think they have reasonable suspicion but think they have some slightly articulable hunch, why not just make the stop and see if the person has an open warrant?

Moskos said...

Yes. Had she pulled back a bit, she might have had me on board. (Of course then she wouldn't have needed to write a solo dissent.) She went too far. That said, the majority of the court is sending a bad message -- no matter how narrow their actual ruling -- that sometimes it might be OK stop somebody without legal justification.

It would be one thing if *I* were to prefer calling the stop a "mistake" rather than "illegal"; real policing can be gray. But this is the Supreme Court. They shouldn't be calling an unconstitutional stop anything less than that. That's their job. They make the rules.

I also find something strange with Sotomayor using a non-random stop of a white criminal -- an addict who was leaving a drug house -- to make a point about arbitrary and suspicionless stops of innocent black people. She really does seem to harp on the harms of police arresting people who have warrants for their arrest. That's odd, right? If she wants a case about racial bias to make her point, why not wait for a case that actually does make her point?

Unknown said...

"Why not make it a legal stop by articulated reasonable suspicion in the report?"

Maybe he really didn't have RAS and is scrupulously honest in what he'll write in a report or testify to on the stand. His testimony on the stand according to the Kerr link is "[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." I'd think almost any cop with some experience (and certainly with a little wood shedding by the DA) can manufacture RAS if he doesn't mind shading the truth. But, I think some simply won't make stuff up. Of course, it's also possible he just was really bad at being able to articulate true facts that would've established RAS. And, as you state, he always could've asked before detaining the guy, although that risks the guy refusing to stop and talk. Ultimately, I agree with you, that if he didn't have or couldn't articulate reasonable suspicion, then he shouldn't have made the stop. I just wish the Supreme Court would have ruled so as to send that message to law enforcement, instead of giving them the de facto, albeit not de jure, green light.

Unknown said...

"I could forgive that level of imprecision if that summary were written by a journalist, but it was written by a Supreme Court justice."

I guess it's a matter of taste, but I don't mind a little passionate prose for law students now and in the future (who will be the ones to read and discuss these opinions, or more accurately, excerpts of them). Scalia is famous for his dissents. While I usually disagreed with Scalia, he's infinitely more readable than a guy like Kennedy. Admittedly, Scalia could over do it sometimes. It's funny though . . . he only over did it in opinions I disagreed with, while the ones I agreed with were always incisive and witty. Quite the coincidence. ;)

Moskos said...

Damnit, I'm not talking about "manufacturing" reasonable suspicion or shading the truth at all. It's putting the truth out there, that's how you build reasonable suspicion. Based on even the few specifics I do know, I can probably provide reasonable suspicion right now. Or at least I could give enough that were it later ruled that I didn't have R.S., it really would at least be a reasonable honest mistake and not an unconstitutional stop. (That said, the cop didn't do it, at least as far as we know.)

He could have asked him. He should have asked him. Very unlikely an addict with drugs is not going to answer a few questions especially if you tell you don't care about what he's got on him. If he refuses, and you really can't articulate truthful reasonable suspicion, then you could always ask the next person who walks out of the house. Better yet, wait for somebody to walk in and out, so you do have R.S.

Moskos said...

Lost in this is the the *other* dissent, Kagan and Ginsburg is pretty sparkly prose itself! I like the "strike 1, strike 2, strike 3" parts.

And how they swapped the names in a Brown decision to show how it applies here. That's good stuff!

Moskos said...

But of course why Sotomayor is getting attention has less to do with her writing style and more to do with her "progressive" ideology, phrasing, and contextualization, so loved by too many in the lefty media.

I mean the NYT wrote an editorial. Plus the news article in the Times read like an editorial and spent more time on one lone dissent that either the actual decision or the two-person dissent.

[Also, I wonder how many times we're now going to see a strict male/female split in court decisions.]

Syebe said...

When evidence isn't suppressed, is the jury informed that there was no warrant involved? I can't make up my mind whether it seems more likely that evidence was falsified if it does ("Hey, we just happened to find exactly what evidence we said we were going to! Imagine that!") or doesn't ("Hey, I thought this guy was acting suspicious and I just happened to find evidence when I decided to frisk him! Imagine that!"), but I'd think it would be relevant somehow to judging the reliability and authenticity of evidence.

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